Judge Alexis G. Krot shouted at Burhan Chowdhury, a 72 year old cancer patient whom local police cited for not maintaining his yard. “If I could give you jail time on this I would,” the Michigan jurist warned Chowdhury.
A cancer diagnosis doesn’t buy much more leniency in other courtrooms. In 2020, a judge in Pennsylvania sentenced Ashley Menser, a 36 year old in need of a hysterectomy for ovarian and cervical cancer, to a 10 month term.
Chowdhury and Menser lucked out in that one didn’t lose his freedom and the other survived her prison bid.
But William Lamprecht wasn’t as fortunate. Sentenced to four months incarceration last September for his second DUI conviction (an incident where no one was hurt), Lamprecht took the drug Truxima for his cancer — follicular lymphoma. His treatment suppressed his immune system. Lamprecht contracted the coronavirus while in custody and died before he could go home.
Qualified immunity has taken the spotlight in discussions of police’s use deadly force but judicial immunity enables just as much lethality. For me, it doesn’t matter if someone dies at one end of a barrel of a gun or the barrel of a pen — if the person at the other end knows the risk of death, they’re committing a homicide.
Judicial immunity is a form of absolute immunity that originated in early seventeenth-century England in two cases heard in the infamous Star Chamber. The Star Chamber was a secret court that administered justice directly and arbitrarily. It was so abusive that the phrase “Star Chamber” has become a pejorative in jurisprudence and popular culture and yet the United States still embraces one of its rules.
The doctrine of judicial immunity wasn’t totally without merit; it assured that judgments would be final (because suing a judge could get him to change his mind in a case) and established judicial independence.
But the way it's evolved over the centuries, judicial immunity licenses judges to commit involuntary manslaughter and avoid any consequence — civil or criminal.
That’s an extreme statement but the elements of the crime of involuntary manslaughter — sometimes called negligent manslaughter — check out. Involuntary manslaughter happens when a perpetrator is aware of a risk of death associated with a certain decision but makes it anyway. Two years into the global crisis, the heightened risk of COVID in congregate living situations like prisons and to cancer patients — even ones in remission — has been established. Judges are aware. And they act anyway.
The pandemic put even more blood on judges’ hands. According to an analysis of new Bureau of Justice Statistics data published January 11 by criminal justice think tank the Prison Policy Initiative, the number of deaths rose 46 percent in prisons from 2019 to 2020 (jail deaths in 2020 have not yet been reported), increasing the likelihood that any sentence can become deadly.
A retired trial judge, one who wishes to remain anonymous, said in an email that judges know that they risk death to defendants when they sentence them. They simply “compartmentalize” that information and “stick to the law.”
Litigants implore judges to do just that, follow the law. But in so doing, they provide cover for these bad decisions; judges cite the fact that they’re only obeying a statute when they sentence defendants to death for non-capital crimes.
Connecticut Superior Court Judge Christopher Pelosi, the judge who sentenced Lamprecht, said during the proceeding that a mandatory minimum sentence tied his hands but that’s only partially true. Connecticut law placed the decision to postpone the sentencing hearing until the pandemic came more under control squarely within Pelosi’s discretion. He chose not to exercise it.
That’s rare. The usual avenue for judicial accountability is elections; constituents can yank janky judges by voting them out. That solution is limited though; trial court judges are elected in 20 states; the remaining 30 states have other procedures. Voters casting ballots for judges don’t know much about the candidates; sometimes they leave that part of the ballot blank when they vote in other races.
Modifying the doctrine of judicial immunity to allow civil liability for wrongful death of those in-custody deaths of people they sentenced might give judges some pause before they bang the gavel and sign the mittimus.
That people coming before these judges are both accused and guilty of breaking the law shouldn’t be part of the analysis here. Look at the offenses in these three cases: substandard gardening, shoplifting (Mesner did have what prosecutors called an “extensive prior criminal record”) and driving under the influence. Violations? Yes. Suicide? No.
To be clear, Judge Krot’s threat against the elderly respondent before her is just a part of the problem. Much of Chowdhury’s case typifies the perfidy of modern courts; having to attend a virtual court proceeding over a minor infraction is a common setup. Police issue summons and require a court date to resolve them and then the summoned party forgets the court date and is charged with failure to appear, a crime. People associate the unrest in Missouri in 2015 with the death of Michael Brown but much of that ire was fueled by the Ferguson Municipal courts issuance of 32,975 warrants like this in 2013. In a city of 21,135 people that amounted to 1.5 warrants per person.
Even though Judge Krot fined Chowdhury $100, there’s little financial incentive for these proceedings in Michigan; blight tickets don’t generate much fine revenue in the state.
It would be bad enough if fine revenue was the justification for Krot’s craziness.
But that the judge was just itching to incarcerate this cancer patient — an act that very easily could have precipitated his death — solely because she thinks his yard was messy shows how easy it is to kill people under color of law.
Chandra Bozelko did time in a maximum-security facility in Connecticut. While inside she became the first incarcerated person with a regular byline in a publication outside of the facility. Her “Prison Diaries" column ran in The New Haven Independent, and she later established a blog under the same name that earned several professional awards. She is now a weekly columnist for The National Memo.